1. [His Lordship after discussing facts, referred to the contention that as a matter of law, interest could not be paid and proceeded as follows:-]
2. Mr. Rao cited to us several decisions of the Privy Council based on the law or the practice which was in force prior to the present practice and to the practice which regulated the decisions of the Court at the time when these proceedings were originally heard. I may note in passing that in one judgment their Lordships followed a particular rule, not because they themselves were in favour of it but because it represented practically the unanimous decisions of all the High Courts in India, and therefore in face of that unanimous opinion they were not prepared to set it aside, and declare that those decisions were all wrong. But in fact by alteration in the rules those decisions have been rendered obsolete.
3. Now we have not here a suit for possession of immovable property and for rent or mesne profits as in Order 20, Rule 12. In that class of suits it is quite easy for a plaintiff to ask at the trial for interest when he gets his decree for possession. If he does not then ask for mesne profits, one can quite understand that he may be debarred thereafter from getting them. But the suit before us is governed partly by Order 20, Rule 18, which provides for making preliminary decrees for the partition of property, and for giving such further directions as may be required. We are now on what I may call further consideration, and I think we may give such further directions as are necessary to work out the accounts and adjust the rights of the parties betweeen themselves. What then about interest ?
4. Now in the present case if it is open to us to award interest on this money, I should unhesitatingly do so having regard to the conduct of defendants Nos. 1 and 2 which the Commissioner has so adversely commented on and with which comments I entirely agree. I may also say that under the rule of Damduput, which admittedly applies here, the Hindu law has foreseen the possibilities of what I have called the longevity of Indian litigation. The rule works very usefully here, because if one takes interest at the normal Court rate of 6 per cent, then after approximately 162/3 year's delay you reaoh your 100 per cent, and no more interest oan be obtained by a plaintiff. So approximately if you take the date of October 1907 when the possession in this case was given and when this sum in question was due from the defendants, we have just about 162/3 years' interest up to the present date. Consequently as a matter of arithmetic it is sufficient to debit the defendants with interest on the sums found due from them as at October 1907 and to disregard complications as to the interest prior to that date. Even taking that date, they have got off some fourteen years' interest from the date of the suit, to say nothing about interest due prior to that date,
5. Therefore it seems to me-and I wish to make this distinction perfectly clear- that we should not debit the defendants with interest on the profits received by them year by year up to 1907, but should debit them with the final sum found due from them by the Commissioner at the proper date, viz., 1907, and with interest thereon to the present date. In my opinion we have jurisdiction to do that in. this case. In this connection I again want to point out the difference which exists between a case where a Court oan only grant a preliminary decree, and a case in. which the main rights can be ascertained at the trial. In Daniell's Chancery Practice, 7th Edn., Vol. I, p. 950 I find it stated:
A party may be charged with interest at the hearing upon further consideration, although the question has not been reserved by the original judgment; and not only may the computation of simple interest be so directed, but, where the Court finds large sums of money in the hands of an agent, receiver, trustee or personal representative, it may direct balances from time to time in the hands of the accounting party to be ascertained, and interest to be computed on them. The Court has even gone the length of charging an accounting party with interest on the balance in his hands on further consideration, not only where there was no reservation of the question of interest by the original decree but even where there was not originally any claim that he might be so charged, and where the circumstances were such that a claim for interest existed, and was known to exist, at the time of the institution of the suit.
6. Then Burland v. Earle (1905) A.C. 590 was a Canadian appeal where the appellant had been ordered to repay money in excess of his salary as manager of the company. There Lord Davey in delivering the judgment of their Lordships said:
Their Lordships do not doubt the power of the Court on further directions to order payment of interest on a sum found due from a defendant, although the docree declaring the liability contains no direction for payment of interest or the statement of claim does not ask for it. In a case like the present one the plaintiffs are not entitled as of right to interest, and the liability for payment of interest, is a matter for the discretion of the Court, and depends largely on the view which the Court may take as to the conduct of the defendant to be charged and the circumstances under which the liability for payment of the principal sum was incurred.
7. Then on going into the facts of that case, their Lordships were of opinion that as the Order in Council intentionally omitted to make an order as to interest, therefore the Court below had no discretion in that particular case to allow interest and consequently the claim for interest was overruled.
8. I may also refer to In re Salvin (1912)1 Ch. 33 where Mr. Justice Eve went into the practice of allowing interest upon the arrears of an annuity, and after pointing out that there was a difference between an administration suit and a mortgage suit in that respect, he directed on further consideration that the arrears of an annuity should carry interest.
9. There is another line of authority which is exemplified in Turner v. Burkinshaw (1867) 2 Ch. 488 where Lord Chelmsford pointed out that usually, unless fraud is proved, an agent is not charged with interest on the moneys in his hands, except from the date of the certificate. It will, however, be remembered that in the present case the original report or certificate was in 1907, and that it is mainly by reason of the subsequent appellate judgment directing the accounts to be carried back still further, that defendants Nos. 1 and 2 have been enabled to delay the proceedings in this way.
10. Then there is a recent case of Ramasamy Aiyar v. Subramania Aiyar (4) A.I.R. 1923 Mad. 147. This was a partition suit, which in the length of its proceedings was somewhat similar to the present one because it was instituted in 1895, and the learned Judges in the Madras High Court were deciding the question of interest in 1922. There the claim for interest was disallowed, and their Lordships referred to some of the English authorities. But there was this material difference of fact, which is pointed out by Mr. Justice Venkatasubba Rao. He says (p. 54):
As my learned brother has pointed out, it cannot be said in this case that the second defendant was bound to invest the profits. The plaintiff had the conduct of the suit and it was quite open to him at any moment to ask for possession of the properties, for an account of the profits and for payment to him of the sum ascertained to be due. The delay is not attributable solely to the second defendant, and the plaintiff has failed to show any grounds for making the second defendant liable for interest.
11. Here the plaintiffs got actual possession in 1907, but long before that, viz., in 1893, had asked for accounts and for payment of the sum due to them and also for interest. Therefore the Madras case seems to me quite a different one from the one which we have before us.
12. Accordingly, after giving my best consideration to the arguments which have been advanced, I hold, first, that in the circumstances of this particular case we have power to award interest; secondly, that it is a case in which if we have the power, undoubtedly interest ought to be allowed; and thirdly, that it ought to be awarded on the basis of interest due on the sums found due from defendants Nos. 1 and 2 as at October 1907, the date down to which the account has been ordered to be taken by the appellate Court.
13. The result, therefore, is that in effect, owing to the rule of Damdupat, we arrive at precisely the same sum as was awarded by the learned Judge, aud I do not propose that the figures that he has given should in any way be altered. We think that the sum he has awarded is the correct sum, and that if there should be any slight variation in rupees or pies it should be adjusted so as to make the aggregate sum for interest amount to 100 per cent. Accordingly our finding is that the sum he has allowed is correct, although we allow it for different reasons.
14. I agree generally with the conclusions of my learned brother, and the reasons that he has given for them.
15. I will only add a few remarks on one or two points. As to the question about interest awarded against the defendants, this is clearly not a case where a decree can be said to have been passed for the payment of money, that is to say, a definite sum of money, falling under Section 34 of the Civil Procedure Code, so as to make Sub-section (2) of the section applicable to the present case. I quite agree with my learned brother that there is no ground for holding that the decree passed originally by the Subordinate Judge in 1894, and the subsequent judgment of this Court in regard to that decree, are intentionally silent on this point of interest, so that such interest must be taken to have been refused. It seems to me to be a case clearly on all fours with the authorities cited by my learned brother, especially the Privy Council case of Burland v. Earle (1905) A.C. 590 where their Lordships held that the Court has the requisite authority to pass orders making interest payable by the defendant, although the decree declaring the liability contained no direction for payment of interest.
16. This case is one that arose under the old Code. The plaintiffs are seeking to execute the original decree which, amongst other things, directed an account to be taken of the income divisible between, the plaintiffs and the defendants. And so far as regards the Darkhast of 1902 they asked for execution of that decree by having accounts taken. The case is one falling under Section 51 of the present Civil Procedure Code under which the Court may grant execution in such other manner as the nature of the relief granted may require. But the position really is analogous to what the present Code recognises, namely, that a preliminary decree be first passed for the taking of an account, and then a final decree be passed when that account has been taken. The case would be entirely governed by Order 20, Rule 18 of the present Code, under which the Court may give such further directions as may be required.
17. Now the case of taking an account uuder that particular rule is similar to the case of taking an account in a decree in an administration suic, and that is governed by Order 21, Rule 30. We have for our guidance Forms Nos. 17 and 18 of the Appendix D to the Civil Procedure Code of decrees in the case of a preliminary decree in an administration suit, and a final decree in an administration suit by a legatee. If those forms are looked at, it will be seen that the legislature does recognise that although the preliminary decree does not contain any direction as to interest on the amount a defendant may be found accountable for, yet in the final decree interest may be awarded against him. In Form.No. 17, item No. 7, there is a direction that the defendant should pay into Court all sums of money which may be found to have come to his hands, &o.; There is nothing in the different heads of this Form which mentions the word 'interest,' and finally the Commissioner is directed to report the result of the enquiries and the accounts and all other acts ordered, and have his certificate ready for inspection of the parties on a certain date.
18. Then when we come to Form No. 18, head No. 1, we find the Form contemplating the Court making an order against a defendant not only as regards the amount certified by the Commissioner but also for the sum of Rs...for interest from a certain date to a certain date. I think that is a clear indication that the legislature intended to allow a subsequent order for the payment of interest of the kind referred to in the Privy Council case that I have already mentioned. The omission to mention interest in Form No. 17 does not appear to be due to oversight, because we find the word ' interest ' mentioned in the form of preliminary decree in an administration suit given in Form No. 19: see item No. 3. The forms with regard to preliminary decree and final decree in suits for dissolution of partnership do not throw any light on this question because the ordinary rule is that in taking partnership accounts interest is not allowed from one partner to another.
19. The case is very much like one where the Court refers the matter to the Commissioner for taking an account, and the ordinary form on the Original Side says:
20. Further directions and further costs reserved.' It does not make any specific direction about interest, but the further directions would cover any subsequent direction on that point.
21. [The points in Appeal No. 67 of 1923 which were not dealt with in the above judgments and Civil Application No. 523 of 1924 were dealt with in the judgments reported below.]
22. We have already disposed, on July 29 of Appeal No. 337 of 1922 apart from the question of costs, and have also dealt with some of the points raised in Appeal No. 67 of 1923. We have since heard full arguments on the remaining points in Appeal No. 67 of 1923 and also Civil Application No. 523 of 1924.
23. Under the rulings of the Court already given, a one-fifth share in the income, the subject-matter of the accounts directed by the preliminary decree of 1894 as subsequently varied by the orders of the appellate Court, devolves on the original defendant No. 3, Himatlal, or his assigns or personal representatives. If one looks at the pedigree, it will be observed that Himatlal was one of five brothers, three of whom, viz, Girdharlal, Bhagubhai and Jaswantrai predeceased him, and one, namely, Hiralal, the original plaintiff No. 1, survived him. It will also be seen that Himatlal died in 1902 leaving a widow Chaturba who died in September 1917. It is alleged that Himatlal left a will in favour of Chaturba under which she was his universal legatee and devisee, and that Chaturba in her turn passed a sale-deed in respect of this one-fifth share to defendants Nos. 1 and 2 dated March 8, 1905. It is common ground that this sale-deed only affected the income after March 8, 1905. Accordingly as the accounts directed by the Court extended from 1870 up to 1907 when possession of the land was given up by defendants Nos. 1 and 2, it follows that the sums found due in respect of this one-fifth share may have to be apportioned so that the amount up to March 8, 1905, passed to the representatives of Himatlal or Chaturba, and the amount accruing after March 8, 1905, passes to the purchasers under the sale-deed of 1905.
24. [His Lordship held that the Court had jurisdiction to decide who were entitled to the one-fifth share and in what shares and proportions, and that the will and the sale-deed were valid, and proceeded as follows:-]
25. There yet remains the question whether Himatlal's nephews are entitled to share along with their uncle Hiralal, or whether Hiralal alone takes so much of Himatlal's one-fifth share as did not pass under the sale-deed, Exhibit 358. I have had the advantage of reading the judgment which my brother Fawcett has prepared on that point, and I need only say that I concur in it. Our final conclusions on these appeals will be stated after that judgment has been delivered.
26. [His Lordship agreed with Marten, J. in upholding the findings of the lower Court as to the will of Himatlal (Exhibit 357) and the sale-deed (Exhibit 358) and continued as follows:-]
27. The dispute resolves itself into one whether under the law of succession contained in the Mayukha, which is the leading authority in the province of Gujarat whence the parties come, the sole heir of Himatlal was Hiralal, his only surviving brother or whether the nephews of Himatlal, plaintiffs Nos. 2, 3 and 4 defendants Nos. 1 and 2, who are the sons of predeceased brothers, are entitled to share along with Hiralal, as if their fathers had survived Himatlal. The son of the deceased plaintiff No. 1, namely Jagubhai, pnts forward the former contention, while plaintiffs Nos. 2, 3 and 4 and defendants Nos. 1 and 2 contend that they are entitled, as nephews, to share in the succession.
28. It is common ground that, although it is now a question of the legal representation of Bai Chaturba who (as already mentioned), was brought on the record as the legal representative of Himatlal, the original defendant No. 3, this only entails a question of heirship to her husband Himatlal, for the marriage between Himatlal and Chaturba being presumably in an approved form, and Chaturba having died leaving no issue, her stridhan inherited from her husband goes to his and not her heirs. There is no dispute on this point. The sole question, therefore, before us is whether Himatlal was entitled to succeed to Chafcurba's Stridhan alone, or whether the nephews, being sons of predeceased brothers, are entitled to share along with plaintiff No. 1.
29. This question turns upon the meaning of paragraph 17 of Section 8 of Chapter IV of the Vyavahara Mayukha, and there is a dispute as to the correct translation of this paragraph. According to the translations of Messrs. Borrodaile and Stokes, the sons of brothers share the inheritance, without any restriction as to their father being alive at the death of their uncle, and the rule has accordingly been taken to be a general one that the sons of a deceased brother succeed along with the surviving brother or brothers. The translation, however, of the same passage made by Messrs. Mandlik, Jamietram and Gharpure, limits the right to the case where the father of any nephew was alive at the death of the paternal uncle, and allows such a nephew to take the share of his father on a division with the other paternal uncles.
30. Before us no expert evidence has been adduced as to which of these two translations is correct, nor has there been any detailed discussion on this point. In any case it would obviously be difficult for us, without a knowledge of Sanskrit,to decide which translation is to be preferred. I understand on good authority that the difference between the two translations turns upon whether an unexpressed negative should be read into one or two words, which are in this passage, and that Sanskrit allows a negative to be read in or the reverse, according to the context. There is, therefore, obviously room for legitimate difference of opinion as to the correct translation. In view of this it seems to me that in considering this question as it arises before us, we should be mainly governed by the principle laid down by the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397 where their Lordships, after stating that the different commentaries had given rise to the different schools of law, say (p. 436):
The duty, therefore, of a European Judge, who is under the obligation to administer Hindoo Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities (Smritis). as to ascertain whether it has been received by the particular School which governed the District with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.
31. Similarly in Muthukaruppa Pillai v. Seethammal (1915) 39 Mad. 298 it is observed: It is not the literal meaning of the original text that has to be looked to in the administration of Hindu law. Though commentators may have been wrong in their interpretation of an original text, their opinion should be enforced as having the sanction of usage.
32. No doubt this principle has reference primarily to ancient commentaries: but in a case like the present I think it can almost equally be applied to usage based on an interpretation accepted by modern commentators. In the present case, we have the fact that undoubtedly for a long time it has been accepted as a rule laid down by the Mayukha that the sons of full brothers succeed with full brothers and in Chandika Baksh v. Muna Kuar (1902) 24 All. 273 this was accepted as being a definite rule in cases governed by the Mayukha. It is true that the translation there referred to was Stokes', and that there was no discussion, and therefore no decision on the point now before us. On the other hand, the fact remains that this wast taken as a definite rule, and the case affords a strong instance of usage. Practically all the modern commentators accept without any questioning this particular rule (see, for instance. Mayne's Hindu Law, 9th Ed., p. 834; Trevelyan's Hindu Law, 2nd Ed., p. 391; Mulla's Hindu Law, 4th Ed., p. 91; and even Gharpure's Hindu Law, 1921 Ed., p. 307). Again in Haribhai v. Mathur A.I.R. 1924 Bom. 140 Shah, J., who himself comes from Gujarat, treats the rule as unquestioned. Russell, J. in Haridas v. Ranchordas (1903) 5 Bom. L.R. 516 also follows the in terpretation of the rule accepted in the Privy Council case I have already mentioned. The construction which the learned Judge there gives to 'the share of their father' in the translation that was furnished to him, is no doubt open to criticism but, on the other hand, this case affords a definite judicial recognition of the rule about all nephews sharing in the succession, and no subsequent case has been cited where this interpretation has been questioned.
33. The only commentators who appear to favour the view put forward by Mr. Ramdutt Desai for plaintiff No. 1 are Messrs. West and Majid, who in the 4th Edition of West and Buhler's Hindu Law, at page 104, limit the right of a nephew to succeed to the particular case of his father being alive when the succession opens, but dying before the partition of the estate takes place; and it is added that 'Representation is not recognised in the case of a predeceased brother who has left sons. These nephews are excluded by their surviving uncles. It is only on the complete failure of brothers of the deceased that brothers' sons succeed to him.' In a foot-note on the same page it is stated:
Some surprise may be felt that this rule should have seemed necessary. But according to Hindu notions, as possession is generally necessary to the completion of ownership, so separate possession is essential in theory to the completion of a separate ownership of a share derived from a prior joint ownership of the aggregate. The father, however, having once become a co-parcener, his son has acquired a concurrent interest which is but expanded by the father's death.
34. Two cases are cited in support of this proposition, viz., Burhum Deo Roy v. Punchoo Roy (10) and Chandika Bakhsh v. Muna Kuar (1902) 24 All. 273. With great respect, I cannot follow how these two cases really support it. I have referred to the report of Burhum Deo Roy v. Punchoo Roy (1865) 2 W.R. 123 and the head-note of that case sufficiently shows the nature of the decision. It says 'according to the Mitakshara Law, a step-brother inherits after the widows, if he survives them; otherwise a uterine brother's son succeeds. 'The Privy Council case of Chandika Bahksh v. Muna Kuar (1902) 24 All. 273 contains, so far as I can see, nothing on the subject. It merely assumes the existence of the rule, as I have already mentioned, that the sons of a brother who is dead share along with the surviving brothers. There is another thing which goes against their view. Among the replies of Shastries collected in West and Majid's Hindu Law at p. 492 will be found a case at Ahmednagar in 1859, where the question put to the Shastri and his answer were as follows:
Q.-A deceased woman has no sons or other near relations, but there are one brother-in-law, and four sons of another brother in-law who are all united in interests. The question is: which of these will be her heirs.
A.-The brother-in-law and the sons of brother-in-law will all be her heirs.
35. This seems to show that in 1859 the Shastri who advised was following the Mayukha rule, as generally interpreted by modern commentators, and the Mayukha is in fact mentioned among the authorities given below the reply, for the Shastri can hardly have rested his opinion on the fact that the brother-in-law and the sons of the brother-in-law were united in interest, as this affords no basis either under the Mitakshara or the Mayukha for the sons of the other brother-in-law joining in the succession.
36. Ahmednagar is one of the places where the Mayukha is considered to be of equal authority with the Mitakshara but gene-rallyinot capable of overruling it (see The Collector of Madura v. Moottoo Ramalihga Sathupathy (1868) 12 M.I.A. 397 and Bhagirithibai v. Kdharujirav (1886) 11 Bom. 285 (F.B.) . In the Ahmednagar Zilla, however, the Mayukha was then supposed to have a special authority, as mentioned by West, J. in the case last cited, and this seems to account for the adoption of the Mayukha rule in this case. The learned authors Messrs. West and Majid have put a foot-note to this case that 'the brother-in-law must have the preference as nearer by one degree,' but the case shows the contrary interpretation of the rule is fairly old.
37. No doubt the rule is an exception to the general principle that the nearer Sapinda excludes the more remote, and the view of Messrs. West and Majid may be the correct one, but the exception seems to be so well established that, in the absence of something fairly conclusive to the contrary, I do not think we should hold that the accepted rule is erroneous, and decide in favour of the suggested restriction that the brother's sons' father must be alive when the deceased uncle died. The principle of stare decisis is clearly applicable to a question of the present kind which relates to property and title. Lord Loreburn in West Ham Union v. Edmonton Union (1908) A.C. 1 says:
Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and specially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them, I consider it is the duty of this House (of Lords) to overrule them, if it has not lost the right to do so by itself expressly affirming them.
38. But in the present case it has not been shown that the previous interpretation of this paragraph 17 in the Mayukha is plainly wrong or that any of the other considerations mentioned by his Lordship applies.
39. Therefore I would answer the question by holding that the nephews, namely, plaintiffs Nos. 2, 3 and 4 and defendants Nos. 1 and 2, are entitled to be treated as the legal representatives of Bai Ohaturba, and to share in' the estate of the deceased Himatlal, which is now in question, along with plaintiff No. 1.